Plaintiff ("Taylor") brings this action pro se asserting claims under 42 U.S.C. § 1983 for alleged deliberate indifference to his medical needs against Joseph Tan, M.D., the Facility Health Services Director at the Gowanda Correctional Facility, Brij Sinha, M.D., the Health Services Director at the Orleans Correctional Facility, Robert Smolinski, M.D., Reginald Sutton, M.D., and E. James, R.N., the Administrative Nurse at the Orleans Correctional Facility (collectively "defendants"). Presently before this Court is the defendants' motion for summary judgment. Defendants argue that Taylor has failed to prove the elements of his section 1983 claims. For the reasons set forth below, the defendants' motion will be granted and Taylor's Complaint will be dismissed.

Taylor's Complaint is based upon events that allegedly occurred while he was incarcerated at the Gowanda Correctional Facility ("GCF"), the Collins Correctional Facility ("CCF") and the Orleans Correctional Facility ("OCF"). Amended Complaint ("Amend. Comp."), at ¶¶ 1, 3, 5-7, 12, 16 and 18-19. Taylor was confined at GCF between October 17, 2000 and December 7, 2000; at CCF between December 7, 2000 and January 17, 2001; and at OCF between January 17, 2001 and June 19, 2001.

Taylor's Amended Complaint contains myriad alleged medical wrongs on the part of the defendants. Taylor alleges that Dr. Tan engaged in medical experimentation upon him by prescribing "psychotropical [sic] drugs." Amend. Comp., at ¶ 2. Furthermore, Taylor's Complaint objects to Dr. Tan's selected course of treatment in response to Taylor's complaints of shoulder and palm pain and alleges that Dr. Tan failed to provide him with splints for his carpal tunnel syndrome. Id. at ¶¶ 2-5. Second, Taylor alleges that Dr. Smolinski performed unnecessary knee reconstruction surgery for the purpose of experimentation and financial gain. Id. at ¶ 6. Taylor claims that his knee surgery was performed without his informed consent and that no follow-up care was provided.*fn2 Id. at ¶¶ 7-9. Third, Taylor alleges that Dr. Sinha failed to assess his medical condition upon transfer to OCF. Id. at ¶ 12. Taylor also alleges that Dr. Sinha failed to provide him with physical therapy or necessary medical referrals to see outside specialists. Id. at ¶¶ 12-15. Fourth, Taylor alleges that Dr. Sutton "refused and denied to provide [him] with *** ordered treatment" — despite Dr. Sutton's alleged awareness of Taylor's ailments. Id. at ¶ 16. Taylor further alleges that Dr. Sutton "purposely over looked and purposefully deceive[d him of] medical care" by not providing access to an outside specialist. Id. at ¶¶ 16-18. Finally, Taylor alleged that James was aware of his complaints of lack of adequate medical treatment but failed to intervene. Id. at ¶¶ 19-20.

Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment shall be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).*fn3

With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248.*fn4 Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***". Anderson, at 248.

Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. See Goenaga, at 18.*fn5 Furthermore, inasmuch as Taylor is proceeding pro se this Court will "read his supporting papers liberally, and *** interpret them to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). "Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome" a properly supported motion for summary judgment. Rodriguez v. Ames, 224 F. Supp.2d 555, 558 (W.D.N.Y. 2002) (quoting Rodriguez v. Hahn, 209 F. Supp.2d 344, 348 (S.D.N.Y. 2002).

Inadequate medical care violates the Eighth Amendment's proscription against cruel and unusual punishment where a defendant acts with "deliberate indifference to [a prisoner's] serious medical needs." Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Accordingly, Taylor's section 1983 claims*fn6 must involve "`deliberate indifference' to his `serious' medical needs." Wilson v. Seiter, 501 U.S. 294, 297 (1991) (emphasis added).*fn7 This "deliberate indifference" inquiry has both subjective and objective factors. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). The objective factor examines whether the deprivation was sufficiently serious, whereas the subjective factor examines whether any defendants acted with a sufficiently culpable state of mind. See id. In examining the seriousness of the medical need, Taylor must have "a condition of urgency, one that may produce death, degeneration, or extreme pain ***." Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002). The subjective factor requires Taylor to demonstrate that defendants were (1) aware of facts from which the inference could have been drawn that a substantial risk of serious harm existed and (2) that defendants in fact drew such an inference. Ibid.*fn8 Moreover, "[b]ecause the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation." Smith v. Carpenter, 2003 WL 115223, at *4 (2d Cir. 2003) (citing Estelle, at 105-106).

Taylor alleges that he was unnecessarily prescribed "psycho-tropical" drugs,*fn9 that he was subjected to knee surgery without his consent, and that the defendants knew or should have known that he was suffering from carpal tunnel syndrome and was experiencing pain in his palms, shoulder and knee, but failed to provide the necessary treatment. Taylor further alleges that defendants failed to provide him with authorization to see outside specialists and failed to provide physical therapy and a prescription for new eyeglasses.

Even if this Court assumes that Taylor's allegations are true, Taylor nonetheless fails to allege sufficiently serious injury.*fn10 Accordingly, he cannot sustain his burden of proving that defendants deliberately disregarded a known or observed serious medical need. Taylor's alleged injuries — inadequate post-operative care, the prescription of "psychotropical drugs", shoulder and palm pain, surgery without consent and failure to provide physical therapy and referrals to outside specialists — are not conditions of urgency "that may produce death, degeneration, or extreme pain." Universal Calvary Church v. City of N.Y., 2000 WL 1538019, at *8 (S.D.N.Y. 2000) (quotations omitted).*fn11 Thus, Taylor cannot satisfy the objective prong of his deliberate indifference claims because his alleged injuries were not sufficiently serious.

Even if this Court were to find that Taylor had suffered a sufficiently serious injury, defendants' summary judgment motion must nonetheless be granted because he has not presented any genuine issue of material fact whether defendants were aware of any serious medical need. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). In other words, Taylor cannot show that defendants acted with deliberate indifference to his claimed serious medical needs. The extensive medical record in this case*fn12 demonstrates that Taylor was provided with both adequate medical treatment and physical therapy and that the defendants were not deliberately indifferent to Taylor's medical needs. Taylor's medical records indicate that the defendants provided him with adequate care in an appropriate manner. Specifically, the record reveals that the knee reconstruction surgery Dr. Smolinski performed on Taylor was not experimental, and that Dr. Smolinski was experienced in performing such procedures.*fn13 Following the surgery, Taylor was provided with post-operative instructions, which he refused to sign, and referred to physical therapy. Smolinski Decl., at ¶ 18; Sinha Decl., at Ex. A, Bates #174-176. Taylor received a follow-up consultation with Dr. Smolinski's orthopedic colleague on December 19, 2000. Smolinski Decl., at ¶ 21; Sinha Decl., at Ex. A, Bates #180. Taylor received further orthopedic follow-ups on March 6, 2001 and April 3, 2001. Smolinski Decl., at ¶¶ 25 and 27; Sinha Decl., at Ex. A, Bates #188 and 193. At the April 3, 2001 consultation, it was determined that Taylor's condition was stable. Smolinski Decl., at ¶ 27.

The record further establishes that Taylor was assessed by Dr. Sinha upon Taylor's transfer to OCF. Sinha Decl., at ¶ 13, Bates #293. At this time, Taylor was prescribed and provided additional physical therapy. Sinha Decl., at ¶¶ 13 and 16, Bates #187. Moreover, Taylor continued to receive both physical therapy and orthopedic consultations while under the care of Doctors Sinha and Sutton. Sinha Decl., ¶¶ 13, 16, 20, 33, 36-39, 47, 50, 64, 67, 99, 112 and 120; Declaration of Dr. Sutton ("Sutton Decl."), at ¶¶ 8(a), 8(f); Sinha Decl., at Ex. A, Bates #187-189, 193-196, 198-200, 297 and 306. Moreover, while Taylor was under the care of Doctors Sinha and Sutton he was observed playing basketball on several occasions — reasonably indicating to the doctors that the need for monitored physical therapy had dissipated. Sinha Decl., at ¶ 18, Ex. A., Bates #295, 308; Sutton Decl., at ¶ 8(f).

With respect to Taylor's allegation that defendants' failed to provide a prescription for eyeglasses and necessary wrist splints, the record indicates that Dr. Sinha requested outside consultation, which was conducted on April 19, 2001. Sinha Decl., at ¶¶ 32, 45, Ex. A, Bates #197; Sutton Decl., at ¶ 8(f). Following the consultation, no new prescription was issued because it was determined that Taylor needed cataract surgery, which would result in a significant change in his prescription. Sinha Decl., at ¶ 45; Sutton Decl., at ¶ 8(e). The record also demonstrates that Dr. Tan submitted an order request for Taylor's wrist splints on January 5, 2001 while Taylor was an inmate at CCF. Tan Decl., at ¶ 28, Bates #292. Although the splints arrived at CCF by February 7, 2001 Taylor had been transferred to OCF in the interim. Id. at ¶¶ 30, 32. Accordingly, the splints were transferred to OCF pursuant to New York State Department of Corrections protocol. Id. at ¶ 30. Thus, Taylor has not shown "that the defendants acted with reckless disregard for the substantial risk posed by [his] serious medical condition." Weyant, at 856. Inasmuch as Taylor has failed to establish either element necessary to sustain his section 1983 claims, defendants' motion for summary judgment will be granted.

Accordingly, it is hereby ORDERED that defendants' motion for summary judgment will be granted and that the Clerk of this Court shall close this case.

*fn2 Taylor's Amended Complaint contains an allegation that Dr. Smolinski conducted the knee reconstruction surgery without obtaining consent. Amend. Comp., at ¶ 7. A careful review of Taylor's Amended Complaint indicates that Taylor objected to the particular method of surgery performed, not that Dr. Smolinski failed to obtain his informed consent. Taylor believed that an "arthoscopic [sic] procedure" was appropriate. Id. However, it was Dr. Smolinski's medical opinion, based upon a physical examination of Taylor and review of his x-ray and MRI reports, that the anterior cruciate ligament revision construction was an appropriate course of action, due to previous use of Taylor's own tissue in his prior ACL reconstruction. Smolinski Declaration ("Smolinski Decl."), at ¶¶ 7-10 and 17.

*fn3 Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.2d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).

*fn4 See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")

*fn6 A section 1983 claim requires the plaintiff to demonstrate that he was deprived, by a person or persons acting under state authority, of a right, privilege or immunity protected under the Constitution or a federal statute. See Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999). Deliberate indifference claims are predicated upon the Eighth and Fourteenth Amendments to the United States Constitution. Ibid. The Eighth Amendment — made applicable to defendants by the Fourteenth Amendment — prohibits the infliction of unnecessary and wanton pain on those convicted of crimes. Hudson v. McMillian, 503 U.S. 1, 5 (1992).

*fn7 Indeed, "allegations of `inadvertent failure to provide adequate medical care,' or of a `negligent *** diagnos[is],' simply fail to establish the requisite culpable state of mind." Wilson, at 297 (citations omitted).

*fn9 The drugs Taylor refers to as "psycho-tropical" are Elavil, Paxil and Sinequan. See Pl.'s Mem. Law, at 2. Elavil has been clinically proven as an antidepressant with sedative effects. See Declaration of Dr. Tan ("Tan Decl.'), at Ex. B. Paxil is used to treat anxiety and nervousness. See Declaration of Dr. Sinha ("Sinha Decl."), at Ex. A, Bates #110 and 113. Sinequan is used to treat symptoms of psychoneurosis such as anxiety, tension, fear, apprehension and worry. See Tan Decl., at Ex. C. None of these drugs is considered to be experimental. See Tan Decl., at Exs. A, B and C.

*fn10 See Davidson v. Scully, 914 F. Supp. 1011, 1015-1016 (S.D.N.Y. 1996) (plaintiff's complaints of, inter alia, a knee injury and a need for new eyeglasses, were not sufficiently serious); see also Pabon v. Goord, 2003 WL 1787268, at *3 (S.D.N.Y. 2003) (holding that a cilival lesion of the base of plaintiff's skull was not sufficiently serious); Rodriguez v. Mercado, 2002 WL 1997885, at *8 (S.D.N.Y. 2002) (holding bruising on plaintiff's head, back and wrists, accompanied by back pain and migraines was not sufficiently serious); Sonds v. St. Barnabas Hosp. Correctional Health Servs., 151 F. Supp.2d 303, 311 (S.D.N.Y. 2001) (holding that a cut finger, even where the skin is "ripped off" does not qualify as a sufficiently severe injury); Miranda-Ortiz v. Deeming, 2001 WL 604017, at *5-6 (holding that abrasions and a headache were not sufficiently serious); Henderson v. Doe, 1999 WL 378333, at *2 (S.D.N.Y. 1999) (holding that a broken finger is not a sufficiently serious injury); Velox v. New York, 35 F. Supp.2d 305, 312 (S.D.N.Y. 1999) (holding that a foot condition involving fracture fragments, a bone cyst and degenerative arthritis is not sufficiently serious); but see Muhammad v. Unger, 2002 WL 450010, at *7-8 (W.D.N.Y. 2002) (holding that the amputation of three of plaintiff's toes as a result of complications from Lupus is a serious injury); Hudak v. Miller, 28 F. Supp.2d 828, 830 (S.D.N.Y. 1998) (holding that a brain aneurysm is a sufficiently serious injury).

*fn11 See also Murphy v. Grabo, 1998 WL 166840, at *4 (N.D.N.Y. 1998) (holding that prison officials have broad discretion to determine if a serious medical condition exists and that an inmate does not have a right to treatment of his choice) (citation omitted); Ross v. Kelly, 784 F. Supp. 35, 44-45 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir. 1992) (holding that prison officials have broad discretion to determine the nature and character of medical treatment afforded to inmates and mere disagreement with prison medical personnel concerning the appropriate course of treatment does not state a cognizable claim under the Eighth Amendment).

*fn12 From 1998 through May of 2001 Taylor had approximately 120 medical encounters within the prison system and was sent out for approximately 107 consults.

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